AR4 WGIII Lead Authors' Responses online – at last!

I reported here on my efforts to get the WGIII Review Editors’ comments back online together with the Lead Authors’ Responses and the Review Editors’ Reports. I had sent Patrick Matschoss, the head of AR5 WGIII TSU an open letter for him to put to the IPCC Bureau urging an open and transparent process in the Fifth Assessment. Following the usual pattern I can now report some success but continuing reluctance on the part of the IPCC to be truly open and transparent .

I also want to ask any German speaking CA readers for help to understand the ‘Brandenburg’ legal implementation of the Aarhus Convention, as I think we may have to use it. I have located an English version of the Brandenburg “Inspection-of-Records and Access-to-Information Act”, here, but on page 3 it indicates that we what need is Part 2: Access-to-Information Acts, Book 2: The Environmental Information Act. If anyone knows of an English language version for this please post a link.

Returning to WGIII, you will recall that Dr Matschoss promised on 15 September to get back to me within one or two weeks. This is his reply received on 12 October.

Dear Mr Holland

Thank you for your letter as of 16 September 2009.

First of all let me convey apologies from Dr. Christ for not having answered to your earlier request. She was away from office for an extended period of time.

According to the IPCC-procedures the comments will be made available after the assessment. Therefore, we do not provide any “guest” login to follow the review process while it is running. Other information is available either via plenary documents (timetables) or via the IPCC-procedures (instructions), available on the website of the IPCC Secretariat: http://www.ipcc.ch/

As the other requests (webcast, review editors’ reports) concern the IPCC as a whole I would have to ask you to address these to the IPCC-Secretariat directly.

Nearly four years after hundreds of Expert Reviewers first gave of their time to submit comments on WGIII drafts of the IPCC Assessment Report, they can see why their professional views were rejected. In the recent words of Dr Pachauri “So it’s a very transparent process”. Except that we are not allowed to see the Review Editors’ reports unless we write to the Secretariat, who do not answer or even acknowledge their emails.

Why so coy? Dr Meyer from PBL had said they were just signed forms and that they had sent everything they had to PIK. If so one more column and few more kilobytes on the PIK website and the job would have been done. I expect they are anodyne, maybe with the odd miss-dating and scruffy signature, so why not be open and transparent.

I think the answer is that for some time the IPCC Bureau have regarded the Appendix A procedures as their defence shield against the the overarching Principle of openness and transparency, and that if they give an inch we will take a mile. And so we shall. Accordingly I replied on 13 October to Dr Matschoss.

Thank you for your email of 12 October 2009.

The release of the Fourth Assessment Working Group 3 Reviewers’ comments with the Lead Authors’ responses is greatly appreciated, and no criticism of you nor PIK was, nor is, intended since you were not responsible for the archiving.

As for your intentions on the Fifth Assessment you are wrong to consider the “IPCC-procedures (instructions)” in isolation to, or as taking precedence over, the “Principles Governing IPCC Work”, to which they are clearly identified as an appendix. Coincidentally at this time, numerous British Members of Parliament, including our Prime Minister, are presently undergoing a humiliating catharsis for the same lapse in judgement.

The Principle, which by international agreement governs how you and PIK should manage the Working Group 3 Fifth Assessment of Climate Change, is:

The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, etc.

A procedure where the public only see comments and responses a year (or nearer two on the first draft) after they have been submitted is simply not open and transparent. Nor are confidentiality agreements that preclude Expert Reviewers from disclosing important IPCC correspondence.

The “procedures” described in Appendix A, which you are endeavouring to rely upon in order to deny public access to information, on the most important environmental matter we face, contain no such restrictions. The procedures do include for providing the 2500, or more, recipients with copies of the drafts and comments during the Assessment and for archiving them afterwards. These are simply specific procedures, which the Panel felt it was useful to spell out. The notion of confidentiality is unsustainable for widely distributed documents, which are not intended to be changed, and in fact are not changed subsequently, but are withheld until long after the report they refer to. The delay in publication serves only to preclude the public right to participation in the IPCC assessment process granted by the Aarhus Convention.

While I know that you are not the initiator of the perverse interpretation of Appendix A Procedures as limiting the Principles, frankly it is unworthy of public servants and is not going to be tolerated by the public in the Fifth Assessment. The extent to which PIK will or will not inform and involve the public is not ultimately a matter for you or the IPCC, as I indicated in my letter to you. The fifth preambular clause of Directive 2003/4/EC of the European Parliament and of the Council, which became law within the EU on or before 14 February 2004 states:

On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). Provisions of Community law must be consistent with that Convention with a view to its conclusion by the European Community.

While you and your colleagues may feel it necessary to test the law on this matter the example of the British MPs aught to serve as a caution. The spectacle of public funds being spent in an effort to avoid disclosure of what turned out to be very embarrassing matters only added to their difficulties. I would also hope that in the city of Potsdam which is now a regular venue for symposia on Freedom of Information, PIK would want to be seen at the forefront of compliance with Aarhus, rather than fighting it.

Accordingly, I remind you that my request for the AR4 WGIII Review Editors’ Reports was passed to you by Dr Meyer, on 9 September 2009, who indicated that PIK now hold them. I consider this a request within the meaning of the Directive that should have been answered by PIK within a month, but which you have failed to do.

You have neither confirmed nor denied that you hold the information requested, but referred the matter to an organisation outside the jurisdiction of the European Union. I find this unacceptable and ask that you reconsider and, if you do hold the information requested, that you email me copies of it.

If you hold the information, and are refusing to disclose it, you must in law explain why and advise me of the process, compliant with the Directive rather than the IPCC, by which I may dispute your decision.

Thanks schnoerkelman.
I have some German neighbors that I might have to bribe.

Re: Ecotretas (#3),
Thanks Ecotretas.
I had not yet looked at pdf properties. Since they had not shown the LAs responses before I guess they just had to convert xls to pdf. But maybe they also had a quick look to be sure no cats were going to get out of any bags and amongst the pigeons.

re:#1 this doc. appears to be the Environmental Information version of the FOI law. However this law expired in 2008, they plan to merge it with the general FOI. This was applicable to data from the government institutions of the Land Brandenburg and their advisors. Land Brandenburg is where PIK resides (Potsdam is the capital).
From page 14 onwards thy show the federal version of this law (no mention of an expiration date here). And to keep the people from asking to many questions it will cost you a few 100 EUROS in most cases to get copies of the data.

Thanks Hans,
I have noticed costs being mentioned but also seen words like “for free” in my pigeon translation, but the Directive which the law implements says in Article 5(2)

Public authorities may make a charge for supplying any
environmental information but such charge shall not exceed a
reasonable amount.

The directive also states in Artcle 7(1)

Member States shall take the necessary measures to ensure that public authorities organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available.

Going back one further step to the Aarhus Convention, which is now incorporated into European law and is what the Directive implements, Article 5(1) states,

Each Party shall ensure that public authorities possess and update environmental information which is relevant to their functions.

So they can’t try the don’t ask don’t tell route. Proactive Dissemination is what we want.

Not quite. The IPCC process is required by international agreement to be open and transparent. However it has never been by any dictionary definition that I can find.
What is now published by PIK for the first time is what Lead Authors wrote four years ago in response to the Experts who reviewed their draft of the report.

I am not a lawyer but if we ended in a legal battle funded by some fairy godmother I believe the Principles Governing IPCC Work would be taken into consideration in deciding what public authortities must put on their website when undertaking IPCC work.

Thanks Hal.
I have now have figured out that the Brandenburg law references the Federal Law.

This is the what we need to understand. Google translation looks very similar to the UK regulations and if you have the time the most useful thing would be to point to any differences that might catch us out.

I translated the introduction of the Brandenburg Province environmental Freedom of Information Act,Jul 2007 , (It’s still in handwriting, I’ll type it up later), I then read the whole thing and found that it

I’m American and have been living in Germany for 19 years,
Translation of the Table of Contents on page 4 of the Informationszugangsgesetze Heft 2 (Information Access Act, Booklet 2) mentioned in No. 1 above as follows:

Re: P Gosselin (#12),
P Gosselin Thanks
And for everyone, I am the apprentice here on WordPress and missed that I need to keep looking at the spam filter. I only thought to do it because it caught me.

However, I do not want to put any one to trouble or expense. I had hoped there might be an official translation lurking about. As in my reply, #13 to Hal, for me the differences from the UK, which should be few, will be enough, should not involve too much work, and might while away a flight.

It would take an awful lot of effort to translate everything with a lead time, and a fee as well. I’m willing to do a little…
This is legal text. It’s not fun. And my wife would never understand me spending half the night or more…

I’ve started on Paragraph 4, but I don’t know if someone else in the meantime may have found an English translation from somewhere else. I’d hate to do all the work and find out later it was all for nothing. Any updates from anyone?

The Official European Commission site for: The Aarhus Convention. Note the three major requirements of:* Access to Information
* Public Participation
* Access to Justice

Recommend pursuing the “Public Participation” as well as the “Access to Information”.

Legislation

The Decision on conclusion of the Aarhus Convention by the EC was adopted on 17 February 2005 [Decision 2005/370/EC]. The EC is a Party to the Convention since May 2005.

In 2003 two Directives concerning the first and second “pillars” of the Aarhus Convention were adopted; they were to be implemented in the national law of the EU Member States by 14 February and 25 June 2005 respectively:

Provisions for public participation in environmental decision-making are furthermore to be found in a number of other environmental directives, such as Directive 2001/42/EC of 27 June 2001 on the assessment of certain plans and programmes on the environment (see also the “environmental assessment” homepage) and Directive 2000/60/EC of 23 October 2000 establishing a framework for Community action in the field of water policy (see also the “Water Framework Directive” homepage).

# “Your Right to a Healthy Environment: a Simplified Guide to the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”: A joint publication of the United Nations Economic Commission for Europe (UNECE) and the United Nations Environment Programme (UNEP) en fr

# Commission Decision 2008/401/EC, Euratom of 30 April 2008 amending its Rules of Procedure as regards detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institution and bodies.

This Decision ensures that the General principles and minimum standards for consultation of interested parties by the Commission [COM(2002) 704] apply to public participation concerning plans and programme relating to the environment. It assigns also clear responsibilities and decision-making powers to the appropriate bodies or persons within the Commission with respect to the provisions of the Regulation concerning requests for internal review.

Each Party shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.

The various European states, all Aarhus parties, make up a big part of the the IPCC and at the end of 2006 had paid over 22% of the IPCC costs since its inception. If they they wanted to, they could apply considerable pressure to make the IPCC behave as the Aarhus Convention requires.

However, when Chairman Pachauri asked for submissions on “the Future of the IPCC” in January 2008, not one Aarhus party suggested the IPCC should open itself to public participation and be genuinely open and transparent.

There is a Compliance Committee for the Aarhus Convention and at some point it may be worth writing to them.

the nature conservation association claimed the infringement of its own rights; specifically its right to participate in development permit procedures (§29 of the Federal Nature Conservation Act [BNatSchG]). As such, this was not a legal action taken by an association to assert substantive environmental interests, but a so-called altruistic legal action by an association.

In particular, §29 of the Federal Nature Conservation Act (BnatSchG) states that recognised nature conservation associations must be given an opportunity to express their views and have access to the relevant expert reports in development permit procedures for projects which involve impairment of nature and landscapes.

In particular I am seeking information on how the Aarhus mandates on “Access to Information” and “Public Participation” apply to the Intergovernmental Panel on Climate Change. In particular,
1) How is the public to access documents on the preparation of and reviews of IPCC documents being prepared?
2) How can the public participate in preparation of IPCC documents?

Ann Maher
Information Centre
Environment Directorate-General
European CommissionAnn.Maher@ec.europa.eu
N.B. Disclaimer required under the terms and conditions of use of the internet and electronic mail from Commission equipment:
‘The views expressed are purely those of the writer and may not in any circumstances be regarded as stating an official position of the European Commission.’

A recognised nature conservation association participating in a development permit procedure following the amendment of planning documents, whose request for access to “relevant expert reports” was not fulfilled, sought to annul the issued development permit on the grounds that its participatory rights were infringed and such infringement could not be remedied in a supplementary hearing.
Relevant Aarhus provisions: Articles 9(1) and (2)Key issues
• Review of denial of access to information
• Review of public participation in decisions on specific activities
Ruling: . . .the subsidiary charge — that the development permit was unlawful and not enforceable due to the procedural infringement — was affirmed.

investigates complaints about maladministration in the institutions and bodies of the European Union.If you are a citizen of a Member State of the Union or reside in a Member State, you can make a complaint to the European Ombudsman. Businesses, associations or other bodies with a registered office in the Union may also complain to the Ombudsman.

The United Nations Ombudsman’s Office is here to provide assistance on work-related problems to all staff regardless of location,category or type of contract. The Office offers a service that is impartial, objective, neutral, independent and fully confidential.

It might be different in other countries, but in some countries a prime but unadvertised purpose of an Ombudsman is to divert pesky inquiries away from the accused, using the guise of semi-legal authority. More simply, don’t rely on an Ombudsman helping you.

I too was concerned to read Dr Pachauri’s comments on Sept 29 so I went to the IPCC site and found they have, in fact, archived the WGI reviewers’ comments, author responses, etc., online at the Harvard College Library. I enquired and on Oct 10, 2009, the library informed me that those comments had been placed in that archive in May 2008.

So, are all the AR4 review comments now online? I’m a bit confused, since some participants in AR4 and earlier Assessment Reports are still complaining at the lack of publication — not to mention issues of actual editing… err, um, censorship/bad science/unjustified conclusions, etc. which the whole disclosure and transparency thing you’re battling with aims to reveal, challenge and correct.

Perhaps they’re referring to the first three reports; for they are not yet online, are they? Certainly, I haven’t found them. Can anyone confirm, or give references for them? Or are there important parts missing?

It’s my intention to confront Dr Pachauri somehow to explain his disingenuous claim of openness, for until comments for all of the Assessment Reports are available the claim is risible.

Re: James Erlandson (#26), yes, it is interesting. Thanks for the link. I did read that post but it meant little to me, early in my study of AGW. Now, there’s more context. Although it’s a complex field, as this thread demonstrates! I’ll leave the international legal questions for others and focus on expressing simple disgust and disappointment to the head man.

Initially IPCC refused to place the WG1 Review Comments online. When I requested them, they said that I would be obliged to travel to Boston and personally photocopy a limited number of pages in limited office hours. CA readers sent FOI requests to NOAA asking for any copies of WG! Review Comments in their possession (NOAA having acted as TSU) and IPCC relented. The WG1 Review Comments were not placed online through their own initiative.

IPCC has refused to provide the important Review Editor comments. In addition, the UK Met Office has used the fact that IPCC is an international organization to claim an execption from producing Review Editor comments under UK FOI – the “international organization” exemption. IPCC was requested to waive this exemption and refused.

Not all IPCC Review Comments were submitted through the TSU. Some reviewers circumvented the system by submitting review comments directly to the section authors. Once again, as with the Review Editor comments, UK agencies have refused to produce such comments under UK FOI legislation through the international organization exemption and IPCC has refused to waive this exemption.

IPCC is not subject to any international FOI law and the international organization relations exemption nullifies national FOI legislation. Until IPCC subjects itself to FOI legislation and announces that it waives the international organization exemption for all member nations, it cannot claim to be “open and transparent”.

Abstract:
The UNECE’s Aarhus Convention is widely considered as a leading light in the area of environmental democracy. Its Compliance Committee is similarly innovative, being the first multilateral environmental agreement to allow members of the public to trigger its compliance procedure. In February 2004 the first case by a member of the public seeking a review of a State Party’s compliance was submitted to the Compliance Committee. Since then a further fifteen cases from members of the public have been received. This paper contains a review of the Compliance Committee’s pioneering work over the last two years. The paper begins with a brief background on the Aarhus Convention. It then describes the structure and modus operandi of the Compliance Committee. The cases brought before the Committee to date are then discussed, including where relevant the Committee’s findings and recommendations and the Meeting of the Parties’ decisions. The paper ends with observations drawn from the Committee’s case work thus far.

In accordance with the provisions of decision I/7 of the first Meeting of the Parties to the Aarhus Convention, the Compliance Mechanism under the Convention is open to communications from the public. The Committee has prepared an information sheet on communications from the public, available in English and Russian.

· In considering any communication from the public, the Compliance Committee will take into account the extent to which any domestic remedy (i.e. review or appeals process) was available to the person making the communication, except where such a remedy would have been unreasonably prolonged or inadequate. Before making a communication to the Committee, the member of the public should consider whether the problem could be resolved by using such appeals mechanisms.

GUIDELINES ON COMPLIANCE WITH AND ENFORCEMENT
OF MULTILATERAL ENVIRONMENTAL AGREEMENTS
1. In its decision 21/27, dated 9 February 2001, the Governing Council of the United Nations Environment
Programme (UNEP), . . . requested the Executive Director “to continue the preparation of the draft guidelines on compliance with multilateral environmental agreements . . .
2.Pursuant to that decision, draft guidelines were prepared for submission to the UNEP Governing Council special session for review and adoption. They were adopted in decision SS.VII/4.

Who can submit a communication?
Any member of the public, i.e. any natural or legal person, may submit a communication to the
Committee. A communication may also be filed by a non-governmental organization, including an
environmental organization or a human rights organization. The person filing the communication –
hereafter referred to as the communicant – is not required to be a citizen of the State Party concerned,
or, in the case of an organization, to be based in the State Party concerned.6

6 Unless the context indicates otherwise, the term ‘State’ should be understood to also cover any regional economic integration organization that is entitled to become a Party to the Convention under its article 19, such as the European Community.

Potential basis for rejection:

In accordance with the decision of the Meeting of the Parties, the Committee will not consider any communication that it determines to be: . . .
(e) Concerning a State which is not a Party to the Convention.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference in the ‘Environment for Europe’ process.

The subject of the Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement, it is also a Convention about government accountability, transparency and responsiveness.
* The Aarhus Convention grants the public rights and imposes on Parties and public authorities obligations regarding access to information and public participation and access to justice.
* The Aarhus Convention is also forging a new process for public participation in the negotiation and implementation of international agreements.

Since the UNEP developed the convention, prepared guidelines for its implementation, it is a UNECE convention, and the UN is the Secretary, there should be a good case to argue that the UNEP itself should comply with the Aarhus Convention. See the Committee’s guidelines on preparing a submission.

A. Purpose
6. The purpose of these guidelines is to assist Governments and secretariats of multilateral environmental agreements, relevant international, regional and subregional organizations, non-governmental organizations, private sector and all other relevant stakeholders in enhancing and supporting compliance with multilateral environmental agreements.
* B. Scope
8. … The guidelines encourage effective approaches to compliance, outline strategies and measures to strengthen implementation of multilateral environmental agreements, through relevant laws and regulations, policies and other measures at the national level and guide subregional, regional and international cooperation in this regard.

* A Purpose
36 The guidelines can assist Governments, its competent authorities, enforcement agencies, secretariats of multilateral environmental agreements, where appropriate, and other relevant international and regional organizations in developing tools, mechanisms and techniques in this regard.
* B Scope
37 . . .These guidelines accord significance to the development of institutional capacities through cooperation and
coordination among international organizations for increasing the effectiveness of enforcement.. .
* 41 (j) Public access to environmental information held by Governments and relevant agencies in conformity with national and applicable international law concerning access, transparency and appropriate handling of confidential or protected information;

Congratulations, David Holland, on your thoroughness and persistence, and on another notable achievement in getting IPCC material into the public domain.

Re John Baltutis, #33: Indur Goklany’s question related to AR4 WGII material, not to the AR4 WGIII drafts, review comments and writing team responses which are now available at the site to which you’ve provided a link, thanks to David’s efforts.

Re: Ian Castles (#35),
Thank you Ian,
The link to the new WGII must be recent. I looked when we first realised WGIII had disappeared. It raises a minor point that irks me. Best practice is to put a last revised date on pages.

Re: Mae (#39),
Thanks Mae and others. I have struggled a bit to keep up which leaves me wondering how Steve does it.

I will over the time get to know the differences between the UK and other European regulations, but Aarhus and the Directive are European law and I hope it is not just us dumb Brits that follow the rules. For instance Article 3(5)(b) of the Directive states:

officials are required to support the public in seeking access
to information

Article 3(2) of Aarhus states:

Each Party shall endeavour to ensure that officials and authorities assist and provide guidance to the public in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters.

The answer to the cost issue has to be to get a court decision somewhere sometime to enforce the Aarhus articles on dissemination and participation. But I know this is not easy. After 18 months I have not yet got CRU to admit that climate change is an environmental matter!

Re: Henry (#40),
There is more than a little truth in what you say, but I never thought a certain Big Blue company would loose out to an upstart and I remember a wall that took some getting rid of. Nobody has to fight this battle and shouldn’t if they are looking for a quick victory.

This summary of the three kinds of German information acts (federal, state and environmental – of which there are 17!) also includes a brief comparison to the UK Freedom of Information act and concludes that the main difference lies in the help given to both the person making the request and the person/institution replying. In Germany you are on your own without access to official advice on how to ask for information and what to do if you are not happy with the reply.

BTW costs are mentioned as follows: the environmental act carries a maximum fee of 500 euros, the other ones 5-25 euros depending on the request. the fee must be reasonable and proportionate and must not prevent the person seeking information from doing so based on financial restraints. Looking at the requested information in situ is always free of charge.

It also mentions specifically that there is no personal or territorial restriction applied when information is requested under any of the environmental information acts and that they are the only ones out of the 30 in existence where the Aarhus convenion applies.